People v. Phan CA4/3

Filed 11/15/23 P. v. Phan CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G061843

v. (Super. Ct. No. 22WF1565)

SANG VAN PHAN, OPINION

Defendant and Appellant.

Appeal from a judgment of the Superior Court of Orange County, Scott A. Steiner, Judge. Affirmed in part and remanded with directions. Jeanine G. Strong, appointed by Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Christopher P. Beesley and Warren J. Williams, Deputy Attorney General, for Plaintiff and Respondent. * * *

Sang Van Phan appeals from an 11-year sentence for attempted voluntary manslaughter. He contends the trial court erred in concluding that he was not eligible for a presumptive low-term sentence due to a prior traumatic brain injury pursuant to Penal 1 Code section 1170, subdivision (b). As discussed below, we conclude that appellant has not shown he was statutorily eligible. Appellant also contends the abstract should be corrected to reflect the court’s oral pronouncement of sentence. We agree, and remand the matter to the trial court to correct the abstract. FACTS On February 12, 2022, appellant and the victim A.M. engaged in a verbal and physical altercation in the parking lot of a grocery store. During the physical altercation, the victim managed to get on top of appellant and punched his face multiple times. Appellant seized a knife from the victim and stabbed him in the neck. The victim grabbed his neck and walked toward the entrance of the grocery store. Appellant followed the victim and made stabbing motions at the victim’s back. The victim entered the store and sat down. When appellant tried to enter the store, a store employee yelled at him to get out. Appellant, who appeared calm, dropped the knife near the shopping cart corral and then left the scene. Appellant was charged, via information, with two counts of assault with a deadly weapon, a knife (§ 245, subd. (a)(1); counts 1 and 3), and one count of attempted murder (§§ 664, subd. (a), 187, subd (a); count 2). As to all counts, it was alleged that appellant personally used a deadly weapon, and as to counts 1 and 2, it was alleged that he caused great bodily injury (GBI). It was further alleged that appellant had suffered a prior “strike” conviction under the Three Strikes law, and a prior serious felony conviction. Finally, as to all counts, factors in aggravation were alleged under California Rules of Court, rules 4.421(a)(1) & (2) and 4.421(b)(1) & (2).